[2022] KEHC 10915 (KLR)

Ochande v Mukasia (Civil Appeal 12 of 2020) [2022] KEHC 10915 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10915 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 12 of 2020

WM Musyoka, J

May 13, 2022

Between

Geoffrey Babu Ochande

Appellant

and

Valentine Mukasia

Respondent

(Appeal from judgment and decree of Hon. E Malesi, Senior Resident Magistrate, in Kakamega CMCCC No. 72 of 2018, of 28th January 2020)

Judgment

1. The respondent had sued the appellant, at the primary court, seeking compensation for injuries that he had suffered, following a traffic road accident on 20th February 2017 along Kakamega-Mumias Road. He was a pillion passenger aboard a motorcycle registration mark and number KMDW 783D, when it got involved in a collision with a motor vehicle registration mark and number KBJ 969H, said to have belonged to the respondent, and liability was attributed to the appellant on account of negligence. The appellant filed a defence, denying the accident. In the alternative, he pleaded that if any accident occurred, it must have been due to negligence on the part of the respondent or the rider of the motorcycle. A trial was conducted. Liability was assessed at 100%, general damages at Kshs. 1, 000, 000. 00 and special damages at Kshs. 5, 000. 00.

2. The appellant was aggrieved, hence the appeal. He has raised several grounds – that the assessment of liability was wrongful, the alternative contributory negligence was not considered, the written submissions and authorities cited were not considered, the evidence tendered by the appellant was not considered in totality, negligence was not proved, the applicable law and precedents were not considered in assessment of damages, the damages awarded were inordinately high and the evidence tendered was not evaluated judicially.

3. Directions were given on 16th September 2021, for written submissions. Both sides have filed written submissions.

4. In his written submissions, the appellant identifies two issues for determination. One, whether the appellant was 100% liable for the accident, and, two, whether quantum of damages was inordinately high. It is submitted that PW1 was seated at the front of the matatu, and did not witness the collision. When he alighted and saw the three persons who were on the motorcycle, and confirmed that the motorcycle had hit the driver’s door of the matatu, and the same could not open. The respondent is said to have testified to have been on the motorcycle, and was not wearing a helmet or reflector jacket. The police officer who testified was said not to be the person who investigated the accident, and confirmed the findings in the inquest, No. 4 of 2017, where the rider was found to be to blame for the collision. The appellant is said to have testified to effect that the police abstract had indicated that the motorcycle rider was to blame for the accident. It is submitted that the rider had failed to comply with various provisions of the Traffic Act, Cap 403, Laws of Kenya, relating to not having a driving licence, insurance for the motorcycle, a helmet and a reflective jacket. It is submitted that the findings of the court which conducted an inquest were conclusive that the motorcycle rider was to blame for the accident. It is also submitted that liability was not established to the required standard. It is submitted that the suit should have been dismissed for failure to prove negligence, or, in alternative, that liability ought to have been settled at 50:50. He cites several authorities, including Halsbury’s Laws of England, 4thEdition, Embu Public Road Services Limited vs. Riimi[1968] EA 22 (Sir Charles Newbold P, Spry & Law JJA), Rahab Wanjiru Nderitu vs. Daniel Muteti & 4 others [2016] eKLR (Janet Mulwa J) and Francis Njoroge Njonjo & another vs. Irene Muroki Kariuki & 8 others[2007] eKLR (Khamoni J).

5. On general damages, it is submitted that the award was inordinately high, and urged that the same be reduced. The appellant points at the inconsistent facts and contradictory allegations, which he submits made quantification difficult. It is also submitted that the medical report placed on record, by Dr. Andai, was done more than a year after the accident, and no x-ray film and report of the fracture was produced. It is suggested that the quantum of general damages should be set at Kshs. 100, 000. 00. Gitabu Imanyara & 2 others vs. Attorney-General[2016] eKLR (Visram, schale & J. Mohammed JJA) and Samuel Mbuuru N. Ng’aari & others vs. Wangiki Wangare & another [2014] eKLR (Waweru J) are cited. On special damages, Kenya Power & Lighting Company vs. Quentin Wambua Mutisya t/a Bondeni Wholesellers [2018] eKLR (GV Odunga J), to make the point that special damages must be pleaded with such particularity as the circumstances may permit, and that it was not enough to say that the particulars would be provided at the trial.

6. The respondent submits that there was no basis for contribution to be called against a third party, as the appellant did not have the third party joined to the proceedings as such. Kenya Commercial Bank vs. Suntra Investment Bank Ltd [2015] eKLR(GikonyoJ) is cited to support that contention. It is asserted that there was nothing in the orders or awards made by the court that warranted revision or review on appeal.

7. On liability, I note that the respondent sued the owner of the accident motor vehicle, the appellant herein, but not the owner of the motorcycle that she was riding on, presumably because he was the rider who died in that accident, although she could still have sued his estate. She attributed liability on the appellant. She was a passenger on the accident motorcycle, and not the person in control of it. Liability could not be attributed to her, as against the appellant, as owner of the other vehicle involved. I would agree with the respondent that the issue of contributory negligence should not arise at all as against her. Contribution could only arise between the owners of the two vehicles involved in the subject collison. The respondent sued one owner, if the that owner, the appellant herein, was of the view that there was contribution from the other vehicle, he ought to have taken steps to bring the owner of the vehicle into the suit as a party, for no orders can be made a person who is not party to the suit.

8. On whether the appellant could be liable at all for the accident, in view of the findings of the court in the inquest in Kakamega CMC Inquest No. 4 of 2018, where the court held the rider of the motorcycle was to blame for the collision, the appellant submits that the findings of the inquest were final. The respondent argues that the trial court was correct in finding the appellant 100% liable. The inquest file was placed on record as an exhibit. I have perused the file. The inquest is supposed to be public, meaning a public hearing where witnesses are presented and examined. That never happened in that case. There is only one minute in the inquest file, by a judicial officer, Hon. B. Ochieng, Chief Magistrate, on 23rd March 2018, when he referred the matter to Hon. Lopokoiyit, Resident Magistrate, for directions. There is nothing on record to show whether the matter was ever placed before Hon. Lopokoiyit, and whether any directions were ever given on the disposal of the inquest. There is no record of a hearing having been conducted. There is no evidence that witnesses were presented and testified, and, therefore, there was no public inquest. An inquest presupposes a full hearing where witnesses are presented and heard, and not a mere review of documents or records. What Hon. Lopokoiyit did was to prepare a ruling without the benefit of having witnesses appear before him. The body of the ruling indicates that it was delivered on 4th April 2018, but there is no record or minute in the file showing delivery of the ruling by any judicial officer. All there is a copy of a ruling purporting that it was delivered on 4th April 2018. I doubt whether determination of an inquest without hearing the parties passes muster, and can be a basis for holding, for the purpose of these proceedings, that the issue of liability was determined in those flawed proceedings. The said inquest proceedings are clearly a nullity. A nullity is a nullity regardless of whether an appeal had been brought on the said determination or not. The trial court was alive to that, and declined to follow the said finding, quite, properly, on grounds that that the inquest did not go to full hearing, meaning that the evidence that the inquest court relied on to come to its conclusions were not subjected to public scrutiny.

9. The trial court had the benefit of taking evidence from the persons who were present when the accident happened, and who gave firsthand information on what transpired. The findings of the trial court would have a superior force, compared with what transpired at the inquest, as there was a full trial of the facts, where witnesses were subjected to testing through cross-examination, as opposed to a mere perusal of documents. The trial court had the benefit of hearing the witnesses, and watching their demeanour as they testified. I cannot, in the circumstances, fault the conclusions that the court came to, based on the testimonies that were given.

10. As indicated above, the only defendant before the trial court was the appellant, and since the respondent was not the owner or driver of the other vehicle liability could not be attributed to her. Secondly, the appellant did not avail himself of the opportunity of the having the owner or driver of that other vehicle or his estate or successor brought into the suit by way of joinder, for contributory negligence to be assigned. The respondent was a mere passenger in one of those accident vehicles and no liability could be attributed to her, and no evidence was placed before the trial court, from which it could apportion liability to her. That left the appellant as the sole party against whom liability could be assigned. The trial court came to the proper finding that that vehicle owner was 100% liable for the accident.

11. On the award of general damages, I note that Dr. Andai testified. He described the injuries sustained by the respondent as an abrasion on the face, fracture on left rib, compound fracture of the left femur, cut wound on the left leg, and lacerations on the left leg and left knee. She was left with scars and like marks on the sites of the injuries and a shortening of the left lower limb. The cross-examination of Dr. Andai was superficial and perfunctory. The respondent herself testified. She did not describe her injuries, but instead stated that she was relying on her written statement, which detailed her injuries as abrasions to the face, fracture of the first rib on the left side, compound fracture on the left femur, cut wound on the felt leg, laceration wound to the left leg and left knee. She stated that she was in hospital for ten months. A P3 form duly filled and a discharge summary were produced as exhibits, as evidence of the injuries alleged.

12. The appellant alleges that the injuries were not proved, particularly so because the x-rays to prove the fractures were not produced. The respondent produced a primary treatment record, the discharge summary, and a P3 form generated from the records. She was examined by a doctor, who gave evidence, and placed on record a medico-legal report. I am persuaded that the respondent did present a case on the injuries that she suffered. It was incumbent on the appellant to demolish that evidence. At the oral hearing, Dr. Andai was not taken to task on the documents or medical records that he relied on to prepare his medico-legal report. He was not examined on the x-rays, neither was the respondent. The appellant did not get the respondent subjected to a second medical examination by a doctor of his own choice for a second opinion. Without such second opinion, the trial court was entitled to assess general damages on the basis of the medical records that the respondent had placed before it. It cannot, therefore, be argued that the injuries had not been properly established.

13. On the quantum itself, the appellant proposes a figure of Kshs. 100, 000. 00. That would obviously be inordinately low, in a case where the respondent had sustained fractures to the rib and a compound fracture of the femur, plus various and numerous serious injuries to the soft tissues. The authority cited does not in any way demonstrate that the award made was inordinately high, neither can it support an assessment commensurate with the grave injuries suffered by the respondent.

14. On special damages, it is submitted that the same had not been specifically pleaded, yet the court awarded Kshs. 5, 000. 00 for the medico-legal report. I have perused the plaint. There is a pleading on special damages in paragraph 4, being Kshs. 5, 000. 00 for medical report, medical expenses Kshs. 3, 000. 00 and treatment notes to be adduced at the hearing. The quantum of special damages is not stated in the prayers. The pleading in paragraph 4 meets the test in Kenya Power & Lighting Company vs. Quentin Wambua Mutisya t/a Bondeni Wholesallers [2018] eKLR (Gikonyo J). There was sufficient particularity, and the omission to set out the figure of the special damages in the prayers was not fatal.

15. Overall, I find no merit in the appeal. The same is hereby dismissed. The respondent shall have the costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13th DAY OF May 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mbeka, instructed by LG Menezes & Company Advocates, for the appellant.Mr. Namatsi, instructed by Namatsi & Company, Advocates, for the respondent.